UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DEBORAH R. NORAH,

Plaintiff,

Civil Action 2:11-cv-00250

v. Judge Algenon L. Marbley

Magistrate Judge E.A. Preston Deavers

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

OPINION AND ORDER

This matter is before the Court for consideration of the February 13, 2012 Report and

Recommendation of the Magistrate Judge. (ECF No. 15.) The Magistrate Judge recommended

that the Court affirm the decision of the Commissioner of Social Security (“Commissioner”). On

February 24, 2012 Plaintiff filed her Objections to the Report and Recommendation. (ECF No.

16.) For the following reasons, Plaintiff’s Objections are OVERRULED and the Report and

Recommendation is ADOPTED.

I.

Plaintiff’s Statement of Errors, as well as her Objections, focus on her mental

impairments. Plaintiff contends that, in finding that she was not disabled, the Administrative

Law Judge (“ALJ”) erred in evaluating her for mental retardation under Listing 12.05C. 

Additionally, Plaintiff maintains that the ALJ’s residual functional capacity (“RFC”)

determination should have required that Plaintiff receive oral instructions and close supervision. 

The Magistrate Judge concluded that the record evidence, including the opinions of

psychologists Lee Howard and John Tilley, supports the ALJ’s conclusion that Plaintiff did not

have deficits in adaptative functioning as required under Listing 12.05C. The Magistrate Judge

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also found that the evidence did not require the ALJ to limit Plaintiff to oral instruction or close

supervision. 

Plaintiff objects to the Magistrate Judge’s findings and recommendation. According to

Plaintiff, Dr. Howard’s opinions do not support a finding that Plaintiff had no deficits in adaptive

functioning. Additionally, Plaintiff continues to contend that the ALJ should have assigned oral

instruction and close supervision restrictions.

II.

If a party objects within the allotted time to a report and recommendation, the Court

“shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.

R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

The Court’s review “is limited to determining whether the Commissioner’s decision ‘is

supported by substantial evidence and was made pursuant to proper legal standards.’” Ealy v.

Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm’r of Soc. Sec.,

486 F.3d 234, 241 (6th Cir. 2007)); see also, 42 U.S.C. § 405(g) (“The findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be

conclusive . . . .”). Put another way, a decision supported by substantial evidence is not subject

to reversal, even if the reviewing court might arrive at a different conclusion. Mullen v. Bowen,

800 F.2d 535, 545 (6th Cir. 1986). “Substantial evidence exists when ‘a reasonable mind could

accept the evidence as adequate to support a conclusion [and] . . . presupposes that there is a

zone of choice within which the decision-makers can go either way, without interference by the

courts.’ ” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal; citation

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omitted). Even if supported by substantial evidence, however, “‘a decision of the Commissioner

will not be upheld where the [Commissioner] fails to follow its own regulations and where that

error prejudices a claimant on the merits or deprives the claimant of a substantial right.’”

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of

Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

III.

A. Listing 12.05C

In her Objections, Plaintiff contends that the opinions of Dr. Howard do not support the

conclusion that she had no deficits in adaptive functioning as refined under Listing 12.05C. 

First, relying on Listing 12.00D(6)(b), Plaintiff contends that because Dr. Howard did not have

access to intelligence-test results, he was not in a position to issue an opinion regarding mental

retardation. Second, Plaintiff asserts that Dr. Howard’s underlying findings do not support his

conclusion that she had no deficits in adaptive functioning. 

Section 12.00D(6)(b) of the listing requirements provides that “[s]tandardized

intelligence test results are essential to the adjudication of all cases of mental retardation that are

not covered under the provisions of 12.05A.” 20 CFR Pt. 404, Subpt. P, App. 1 § 12.00D(6)(b). 

This statement is confirmed within Listing 12.05 for mental retardation: 12.05B, C, and D all

require a claimant to produce IQ tests results to confirm mental retardation. See 20 CFR Pt. 404,

Subpt. P, App. 1 § 12.05. In addition to IQ results, however, Listing 12.05C also requires a

claimant to satisfy a diagnostic description demonstrating “(1) subaverage intellectual

functioning; (2) onset before age twenty-two; and (3) adaptive-skills limitations.” Hayes v.

Comm’r of Soc. Sec., 357 F. App’x 672, 675 (6th Cir. 2009). Accordingly, it is not enough for a

claimant to produce IQ results to meet Listing 12.05C. Cooper v. Comm’r of Soc. Sec., 217 F.

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App’x 450, 452 (6th Cir. 2007). The claimant must also demonstrate that he or she meets the

diagnostic description. Id.

Given this binding precedent, the Court concludes that the ALJ was not required to

disregard the opinions of Dr. Howard in assessing Listing 12.05C. Although Dr. Howard did not

have the benefit of IQ testing, as a physiologist he was still an acceptable medical source who

examined Plaintiff and performed a review of her functioning. To the extent Dr. Howard opined

as to Plaintiff’s adaptive functioning, this information was certainly probative to determining

whether Plaintiff met the diagnostic description requirements of Listing 12.05C. Accordingly,

the ALJ was entitled to consider Dr. Howard’s opinions.

Furthermore, the Court agrees with the Magistrate Judge that Dr. Howard’s opinions

support the ALJ’s finding that Plaintiff did not have deficits in adaptive functioning. As Plaintiff

stresses, Dr. Howard findings indicate that Plaintiff had some mental limitations including

reduced short-term memory; somewhat reduced long-term memory; and a generally fund of

knowledge that was slightly below normal. (See R. at 260–61.) As the Magistrate Judge

discussed, however, “case law from the Sixth Circuit and other federal courts, suggests a

claimant must have relatively significant deficits” to satisfy the requirement of deficits in

adaptive functioning. (Report & Recommendation 13–14, ECF No. 15 (collecting case law).) 

Here, even considering that Plaintiff was somewhat limited in multiple areas, Dr. Howard

concluded that Plaintiff “retained adaptive functioning . . . .” (R. at 262.) Additionally, Dr.

Howard assigned Plaintiff a global assessment of functioning (“GAF”) score suggesting no more

than slight impairments in functioning. (See id.) Under these circumstances, the opinions of Dr.

Howard support the ALJ’s finding that Plaintiff did not have adaptive functioning deficits within

the meaning of Listing 12.05C.

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Even if the ALJ would have disregarded Dr. Howard’s opinion, the opinions of Dr. Tilley

still support the conclusion that Plaintiff did not have deficits in adaptive functioning. Dr.

Tilley, who had access to Plaintiff’s intelligence testing, assigned Plaintiff a GAF score

indicating only mild symptoms. (See R. at 396.) Dr. Tilley also assessed Plaintiff’s mental

functional capacity in a variety of areas and assigned Plaintiff no limitation or no significant

limitations in every area. (R. at 398.) Accordingly, in light of these circumstances, the Court

finds that substantial evidence supports the ALJ’s conclusion that Plaintiff did not have deficits

in adaptive functioning and, therefore, did not satisfy the requirements of Listing 12.05C.

B. Mental RFC Limitations

Within her second objection, Plaintiff asserts that the ALJ should have assigned her two

additional mental limitations within her RFC. Plaintiff contends that pursuant to Social Security

Ruling 85-16, she required oral instructions and close supervision.

Social Security Ruling 85-16 provides as follows:

The evaluation of intellectual functioning by a program physician, psychologist,

ALJ, or AC member provides information necessary to determine the individual’s

ability to understand, to remember instructions, and to carry out instructions. Thus,

an individual, in whom the only finding in intellectual testing is an IQ between 60

and 69, is ordinarily expected to be able to understand simple oral instructions and

to be able to carry out these instructions under somewhat closer supervision than

required of an individual with a higher IQ. Similarly, an individual who has an IQ

between 70 and 79 should ordinarily be able to carry out these instructions under

somewhat less close supervision.

SSR 85-16, 1985 WL 56855, at *3 (1985). As Plaintiff admits, however, Ruling 85-16 does not

require limitations of oral instructions and close supervision for all claimants with an IQ between

60 and 69.

In this case, the Court concludes that substantial evidence supports the ALJ’s omission of

such restrictions. As the Magistrate Judge recognized:

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[T]he ALJ properly omitted restrictions for oral instruction or close supervision

because substantial evidence of record indicated that Plaintiff did not need these

accommodations. Although Dr. Howard found Plaintiff capable of understanding

and executing instructions within the low to moderate task range, he did not indicate

that Plaintiff required oral instruction. Additionally, Dr. Howard found Plaintiff

capable of relating to supervisors and did not indicate that Plaintiff required an

increased degree of supervision. Dr. Tilley likewise found Plaintiff to be capable of

performing simple instructions and not significantly limited in carrying out detailed

instructions. Dr. Tilley’s mental functional capacity evaluation further indicated that

Plaintiff was capable of sustaining an ordinary routine without special supervision. 

Under these circumstances, the ALJ reasonably accommodated Plaintiff by assigning

an RFC limiting her to simple, repetitive tasks.

(Report & Recommendation 17–18, ECF No. 15.) Ultimately, although a reasonable person may

have found oral instruction or close supervision appropriate, the ALJ was within his zone of

discretion in determining that such limitations did not apply.

IV.

For the above reasons, as well as the reasoning outlined by the Magistrate Judge in her

Report and Recommendation, Plaintiff’s Objections (ECF No. 16) are OVERRULED and the

Report and Recommendation is ADOPTED (ECF No. 15). The decision of the Commissioner is

therefore AFFIRMED.

IT IS SO ORDERED.

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY

 UNITED STATES DISTRICT COURT

DATED: March 20, 2012

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